H. B. 4453
(By Delegates Amores, Trump and Linch)
[Introduced February 17, 1998; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact sections eleven, twelve, thirteen,
fourteen and fifty-one, article one, chapter thirty-one of the
code of West Virginia, one thousand nine hundred thirty-one,
as amended; to further amend said article by adding thereto a
new section, designated section six-a; to amend and reenact
sections one hundred five and one hundred six, article one,
chapter thirty-one-b of said code; to amend and reenact
sections two hundred three and two hundred eleven, article two
of said chapter; to amend and reenact section one thousand
two, article ten of said chapter; to amend and reenact
sections four and five, article eight, chapter forty-seven of
said code; to amend and reenact sections two, three and fifty- one, article nine of said chapter; to amend and reenact
sections one through six, inclusive, article nine-a of said
chapter; and to further amend said article by adding thereto a new section, designated section seven, all relating to
certification and registration requirements for business
entities; requiring business entities to notify the secretary
of state of changes in officers, trustees, and members
authorized to execute certain documents to be filed with the
secretary of state; setting forth name requirements and
requiring that names of business entities be distinguishable
from the names of other business entities and trade names;
providing for the reservation of corporate names, including a
temporary name reservation procedure; authorizing the
registration of corporate names by foreign corporations and
the renewal of such registrations; updating various provisions
to recognize new authorized business entities; authorizing the
use and reservation of names for limited liability companies;
modifying requirements for articles of incorporation, the
filing of annual reports, and applications for certificates of
authority for limited liability companies; revising
requirements for the filing of applications for registration
of trade names; providing for names and the reservation of
names of limited partnerships and the registration of names of
foreign limited partnerships; setting forth detailed
procedures for the certification and registration of business
trusts and voluntary associations; requiring the secretary of
state to issue certificates which must be filed with the clerk of certain county commissions; creating various requirements
for business trusts and voluntary associations, including
requirements relating to the names of such entities, the
adoption and use of trade names and seals, the amendment of
organizing documents, changes in the identities of authorized
persons and agents for receipt of service of process, and the
dissolution and withdrawal of such entities; permitting
business trusts and voluntary associations to use trade names
and providing for the acknowledgment of certain deeds and
other writings; validating previously executed instruments;
and providing for the repeal of inconsistent acts and the
severability of provisions.
Be it enacted by the Legislature of West Virginia:
That sections eleven, twelve, thirteen, fourteen and fifty- one, article one, chapter thirty-one of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, be amended and
reenacted; that said article be further amended by adding thereto
a new section, designated section six-a; that sections one hundred
five and one hundred six, article one, chapter thirty-one-b of said
code be amended and reenacted; that sections two hundred three and
two hundred eleven, article two of said chapter be amended and
reenacted; that section one thousand two, article ten of said
chapter be amended and reenacted; that sections four and five,
article eight, chapter forty-seven of said code be amended and reenacted; that sections two, three and fifty-one, article nine of
said chapter be amended and reenacted; that sections one through
six, inclusive, article nine-a be amended and reenacted; and that
said article be further amended by adding thereto a new section,
designated section seven, all to read as follows:
CHAPTER 31. CORPORATIONS.
ARTICLE 1. BUSINESS AND NONPROFIT CORPORATIONS.
§31-1-6a. Signatures on documents filed with the secretary of
state.
(a) No document which is required to be executed or verified
by an officer or officers of a corporation shall be filed with the
secretary of state unless:
(1) The officers who have executed or verified the document to
be filed are the current officers of the corporation and the
secretary of state has on file (A) a current annual return of the
corporation filed pursuant to section three, article twelve-c,
chapter eleven of this code which identifies such officers or (B)
another corporate document which identifies such officers; or
(2) The document to be filed is accompanied by appropriate
documentation showing that the persons executing or verifying the
document are current officers of the corporation or are otherwise
authorized to execute or verify the document on behalf of the
current officers of the corporation.
(b) For purposes of subsection (a) of this section, the term
"appropriate documentation" means: (1) A copy of the minutes of the
board of directors of the corporation reflecting the election or
appointment of new officers, which copy includes or is accompanied
by a notarized statement of authenticity signed by at least one
director; (2) a court order reflecting the identity of the current
officers or the authorization of any person to act for any officer;
or (3) any other legally authorized document assigning to the
person executing or verifying the document clear authority to
execute or verify documents on behalf of the corporation.
§31-1-11. Corporate name; requirements; certain names prohibited.
(a) Except for corporations in existence prior to the
effective date of this article, the corporate name:
(1) Shall contain the word "corporation," "company,"
"incorporated" or "limited," or shall contain an abbreviation of
one of such words.
(2) Shall not contain any word or phrase which indicates or
implies that it is organized for any purpose other than one or more
of the purposes contained in its articles of incorporation.
(3) Shall not be the same as, or deceptively similar to
and
shall be distinguishable from: (A) the name of any domestic
corporation, whether stock or nonstock and whether or not organized
for profit domestic limited partnership, domestic limited liability
partnership, or domestic limited liability company existing under the laws of this state; or (B) the name of any foreign corporation,
foreign limited partnership, foreign limited liability partnership,
foreign limited liability company, or any other foreign business
entity whether stock or nonstock and whether or not organized for
profit authorized to conduct affairs or do or transact business in
this state; (C) a name the exclusive right to which is, at the
time, reserved in the manner provided in this article by law; or
(D) the name of a corporation, limited partnership, limited
liability partnership, or limited liability company which has in
effect a registration of its corporate business name as provided
in this article by law. except that this provision The
requirements of this subdivision shall not apply if the applicant
files with the secretary of state either (i) (X) the a written
consent to the use and a written undertaking by such other
corporation, or holder of a reserved or registered name to use the
same or deceptively similar name and one or more words are added to
make such name distinguishable from such other name the present
user, registrant or owner of a reserved name submitted in a form
satisfactory to the secretary of state to change the name to a name
that is distinguishable from the name applied for or (ii) (Y) a
certified copy of a final order of a court of competent
jurisdiction establishing the prior right of the applicant to the
use of such name in this state. For purposes of this subdivision,
any terms or abbreviations required to be included in the business name to identify the type of business entity shall not alone be
sufficient make one name distinguishable from another.
(4) Shall be transliterated into letters of the English
alphabet, if it is not in English.
(b) A corporation with which another corporation, domestic or
foreign, is merged, or which is formed by the reorganization or
consolidation of one or more domestic or foreign corporations or
upon a sale, lease or other disposition to or exchange with, a
domestic corporation of all or substantially all the assets of
another corporation, domestic or foreign, including its name, may
have the same name as that used in this state by any of such
corporations if such other corporation was organized under the laws
of, or is authorized to conduct affairs or do or transact business
in this state.
(c) After the effective date of this section, no corporation
shall be chartered in this state under any name which includes the
word "engineer," "engineers," "engineering" or any combination of
same unless the purpose of the corporation is to practice
professional engineering as defined in article thirteen, chapter
thirty of this code, as amended, and one or more of the
incorporators is a registered professional engineer as therein
defined.
§31-1-12. Reserved name.
(a) The exclusive right to the use of a corporate name may be
reserved by:
(1) Any person intending to organize a corporation under this
article.
(2) Any domestic corporation intending to change its name.
(3) Any foreign corporation intending to make application for
a certificate of authority to conduct affairs or do or transact
business in this state.
(4) Any foreign corporation authorized to conduct affairs or
do or transact business in this state and intending to change its
name.
(5) Any person intending to organize a foreign corporation and
intending to have such corporation make application for a
certificate of authority to conduct affairs or do or transact
business.
(b) The reservation shall may be made by filing with the
secretary of state an application to reserve a specified corporate
name executed by the applicant and by submitting the fee prescribed
by section two, article one, chapter fifty-nine of this code. If
the secretary of state finds that the name is available for
corporate use, he shall reserve the name shall be reserved for the
exclusive use of the applicant for a period of one hundred twenty
days. A reservation may be renewed for one additional period of
one hundred twenty days, but may not thereafter be reserved by the same or associated persons within one calendar year of the
expiration of the last reservation period.
(c) A temporary reservation may be made in person or by
telephone without a fee through the office of business registration
established under article twelve-d, chapter eleven of this code.
If the secretary of state finds that the name is available for
corporate use, the name shall be reserved for the exclusive use of
the applicant for a period of seven days. A reservation made under
this subsection shall expire on the seventh day after it is made
unless the name is first reserved pursuant to subsection (b) of
this section. A temporary reservation under this subsection may
not be renewed by another temporary reservation. The secretary of
state shall establish procedures for the making of temporary
reservations under this subsection.
(d) The right to the exclusive use of a specified corporate
name so reserved may be transferred to any other person or
corporation by filing in the office of the secretary of state a
notice of such transfer, executed by the applicant for whom the
name was reserved, and specifying the name and address of the
transferee.
§31-1-13. Registered name.
Any corporation organized and existing under the laws of any
state or territory of the United States may register its corporate
name under this article, provided its corporate name is not the same as, or deceptively similar to, the name of any domestic
corporation existing under the laws of this state, or the name of
any foreign corporation authorized to conduct affairs or do or
transact business in this state, or any corporate name reserved or
registered under this article complies with the requirements of
subdivision (3), subsection (a), section eleven of this article.
Such registration shall be made by:
(a) Filing with the secretary of state (1) an application for
registration executed by the corporation by an officer thereof,
setting forth the name of the corporation, the state or territory
under the laws of which it is incorporated, the date of its
incorporation, a statement that it is carrying on or doing
business, and a brief statement of the business in which it is
engaged, and (2) a certificate setting forth that such corporation
is in good standing under the laws of the state or territory
wherein it is organized, executed by the secretary of state of such
state or territory or by such other official as may have custody of
the records pertaining to corporations, and
(b) Paying to the secretary of state a the registration fee in
the amount of fifty cents for each month, or a fraction thereof,
between the date of filing such application and June thirtieth of
the fiscal year in which such application is filed prescribed by
section two, article one, chapter fifty-nine of this code.
Such registration shall be effective until the close of the
fiscal year in which the application for registration is filed.
§31-1-14. Renewal of registered name.
A corporation which has in effect a registration of its
corporate name may renew such registration from year to year by
annually filing an application for renewal setting forth the facts
required to be set forth in an original application for
registration and a certificate of good standing as required for the
original registration and by paying a fee of five dollars the fee
prescribed by section two, article one, chapter fifty-nine of this
code. A renewal application may be filed between the first day of
April and the thirtieth day of June in each year, and shall extend
the registration for the following fiscal year.
§31-1-51.Corporate name of foreign corporation; when certificate
of authority shall not be issued.
(a) No certificate of authority shall be issued to a foreign
corporation unless the corporate name of such corporation:
(1) Shall contain the word "corporation," "company,"
"incorporated" or "limited," or shall contain an abbreviation of
one of such words, or such corporation shall, for use in this
state, add at the end of its name one of such words or an
abbreviation thereof.
(2) Shall not contain any word or phrase which indicates or
implies that it is organized for any purpose other than one or more of the purposes in its articles of incorporation, or if the
corporate name of such corporation indicates or implies that it is
authorized or empowered to conduct the business of banking or
insurance unless such corporation is so authorized or empowered
under the laws of this state.
(3) Shall not be the same as, or deceptively similar to, the
name of any corporation existing under the laws of this state,
whether stock or nonstock and whether or not organized for profit,
or any foreign corporation, authorized to conduct affairs or do or
transact business in this state, whether stock or nonstock and
whether or not organized for profit, or a corporate name reserved
or registered as permitted by the laws of this state Shall comply
with subdivision (3), subsection (a), section eleven of this
article.
(4) Shall be transliterated into letters of the English
alphabet, if it is not in English.
(b) The provisions of subdivision (3), subsection (a) of this
section shall not apply if the foreign corporation applying for a
certificate of authority files with the secretary of state any one
of the following:
(1) A resolution of its board of directors adopting a
fictitious name for use in conducting affairs or doing or
transacting business in this state, which fictitious name is not
deceptively similar to the name of any domestic corporation or of any foreign corporation authorized to conduct affairs or do or
transact business in this state or to any name reserved or
registered as provided in this article complies with the
requirements of subdivision (3), subsection (a), section eleven of
this article, or
(2) The A written consent to the use and a written undertaking
of such other corporation or holder of a reserved or registered
name to use the same or deceptively similar name and one or more
words are added to make such name distinguishable from such other
name the present user, registrant or owner of a reserved name
submitted in a form satisfactory to the secretary of state to
change the name to a name that is distinguishable from the name
applied for; or
(3) A certified copy of a final order of a court of competent
jurisdiction establishing the prior right of such foreign
corporation to the use of such name in this state.
CHAPTER 31B. UNIFORM LIMITED LIABILITY COMPANY ACT.
ARTICLE 1. GENERAL PROVISIONS.
§31B-1-105. Name.
(a) The name of a limited liability company must contain
"limited liability company" or "limited company" or the
abbreviation "L.L.C.", "LLC", "L.C." or "LC". "Limited" may be
abbreviated as "Ltd." and "company" may be abbreviated as "Co.".
(b) Except as authorized by subsections (c) and (d) of this
section, the name of a limited liability company must be
distinguishable upon the records of the secretary of state from:
(1) The name of any corporation, limited partnership, limited
liability partnership or limited liability company incorporated,
organized or authorized to transact business in this state;
(2) A name reserved or registered under section sections 1-106
or 1-107 of this article or under sections twelve or thirteen of
article one, chapter thirty-one of this code.
(3) A fictitious name approved under section 10-1005 for a
foreign company authorized to transact business in this state
because its real name is unavailable.
(c) A limited liability company may apply to the secretary of
state for authorization to use a name that is not distinguishable
upon the records of the secretary of state from one or more of the
names described in subsection (b) of this section. The secretary
of state shall authorize use of the name applied for if:
(1) The present user, registrant or owner of a reserved name
consents to the use in a record and submits an undertaking in form
satisfactory to the secretary of state to change the name to a name
that is distinguishable upon the records of the secretary of state
from the name applied for; or
(2) The applicant delivers to the secretary of state a
certified copy of the final judgment of a court of competent jurisdiction establishing the applicant's right to use the name
applied for in this state.
(d) A limited liability company may use the name, including a
fictitious name, of another domestic or foreign company which is
used in this state if the other company is organized or authorized
to transact business in this state and the company proposing to use
the name has:
(1) Merged with the other company;
(2) Been formed by reorganization with the other company; or
(3) Acquired substantially all of the assets, including the
name, of the other company.
§31B-1-106. Reserved name.
(a) A person may reserve the exclusive use of the name of a
limited liability company, including a fictitious name for a
foreign company whose name is not available, by delivering an
application to the secretary of state for filing. The application
must set forth the name and address of the applicant and the name
proposed to be reserved. If the secretary of state finds that the
name applied for is available, it must be reserved for the
applicant's exclusive use for a nonrenewable one hundred twenty-day
period. The reservation may be renewed for one additional period
of one hundred twenty days, but may not thereafter be reserved by
the same or associated persons within one calendar year of the
expiration of the last reservation period.
(b) The owner of a name reserved for a limited liability
company may transfer the reservation to another person by
delivering to the secretary of state a signed notice of the
transfer which states the name and address of the transferee.
§31B-2-203. Articles of organization.
(a) Articles of organization of a limited liability company
must set forth:
(1) The name of the company;
(2) The address of the initial designated office;
(3) The name and street address of the initial agent for
service of process;
(4) The name and address of each organizer and of each member
having authority to execute instruments on behalf of the limited
liability company;
(5) Whether the company is to be a term company and, if so,
the term specified;
(6) Whether the company is to be manager-managed, and, if so,
the name and address of each initial manager; and
(7) Whether one or more of the members of the company are to
be liable for its debts and obligations under section 3-303(c).
(b) Articles of organization of a limited liability company
may set forth:
(1) Provisions permitted to be set forth in an operating
agreement; or
(2) Other matters not inconsistent with law.
(c) Articles of organization of a limited liability company
may not vary the nonwaivable provisions of section 1-103(b). As to
all other matters, if any provision of an operating agreement is
inconsistent with the articles of organization:
(1) The operating agreement controls as to managers, members
and members' transferees; and
(2) The articles of organization control as to persons other
than managers, members and their transferees who reasonably rely on
the articles to their detriment.
§31B-2-211. Annual report for secretary of state.
(a) A limited liability company, and a foreign limited
liability company authorized to transact business in this state,
shall deliver to the secretary of state for filing an annual report
that sets forth:
(1) The name of the company and the state or country under
whose law it is organized;
(2) The address of its designated office and the name and
address of its agent for service of process in this state;
(3) The address of its principal office; and
(4) The names and business addresses of any managers and the
name and address of each member having authority to execute
instruments on behalf of the limited liability company.
(b) Information in an annual report must be current as of the
date the annual report is signed on behalf of the limited liability
company.
(c) The first annual report must be delivered to the secretary
of state between the first day of January and the first day of
April of the year following the calendar year in which a limited
liability company was organized or a foreign company was authorized
to transact business. Subsequent annual reports must be delivered
to the secretary of state between the first day of January and the
first day of April of the ensuing calendar years.
(d) If an annual report does not contain the information
required in subsection (a) of this section, the secretary of state
shall promptly notify the reporting limited liability company or
foreign limited liability company and return the report to it for
correction. If the report is corrected to contain the information
required in subsection (a) of this section and delivered to the
secretary of state within thirty days after the effective date of
the notice, it is timely filed.
§31B-10-1002. Application for certificate of authority.
(a) A foreign limited liability company may apply for a
certificate of authority to transact business in this state by
delivering an application to the secretary of state for filing,
together with a fee in the amount of one hundred fifty dollars.
The application must set forth:
(1) The name of the foreign company or, if its name is
unavailable for use in this state, a name that satisfies the
requirements of section 10-1005;
(2) The name of the state or country under whose law it is
organized;
(3) The street address of its principal office;
(4) The name and address of each member having authority to
execute instruments on behalf of the limited liability company;
(5) The address of its initial designated office in this
state;
(5) (6) The name and street address of its initial agent for
service of process in this state;
(6) (7) Whether the duration of the company is for a specified
term and, if so, the period specified;
(7) (8) Whether the company is manager-managed, and, if so,
the name and address of each initial manager; and
(8) (9) Whether the members of the company are to be liable
for its debts and obligations under a provision similar to section
3-303(c).
(b) A foreign limited liability company shall deliver with the
completed application a certificate of existence or a record of
similar import authenticated by the secretary of state or other
official having custody of company records in the state or country
under whose law it is organized.
CHAPTER 47. REGULATION OF TRADE.
ARTICLE 8. TRADE NAMES.
§47-8-4.Corporations, associations, limited partnerships, limited
liability partnerships, and limited liability companies
not to conduct business under assumed name without
certificate of trade name; application; issuance of
certificate of trade name.
(a) No business entity organized as a corporation, limited
partnership, limited liability partnership, limited liability
company, business trust or voluntary association required to
register with the secretary of state in order to conduct business
within the state may conduct or transact any business in this state
under any assumed name, or under any designation, name or style,
corporate or otherwise, other than the name established by the
original certificate of incorporation, authority, association or
limited partnership establishing the business entity or by an
amendment thereto, unless the corporation, limited partnership or
association business entity files in the office of the secretary of
state a certificate of an application for registration of true
trade name. The application shall setting set forth:
(1) The name under which the business entity is organized and
registered;
(1) (2) The name or names under which such the business of
such business entity is, or is to be, conducted or transacted upon approval of the application, which name must be distinguishable
from the name of any other corporation, limited partnership,
limited liability partnership, limited liability company, business
trust or voluntary association, and from any name reserved or
registered for any of those business entities;
(3) with The address of the principal office within the state
or, if no office is maintained within the state, the address of the
principal office in the state in which the corporation, association
or limited partnership business entity is established; and
(4) The name, title and signature of a person having authority
to make the application .
The secretary of state shall grant a certificate of registration to
any applicant who has met the requirements of this subsection. A
new certificate of registration is to be filed if the corporation,
limited partnership or association business entity desires to
conduct or transact any business in this state under any other
assumed name not on file in the office of the secretary of state.
(b) Two executed originals of the application for true trade
name registration shall be delivered to the secretary of state.
If the filing officer finds that the application for true trade
name registration conforms to law, he or she shall, when all fees
have been paid as prescribed by law: (i) Endorse on each of the
originals the word "filed" and the month, day and year of the
filing; (ii) file one of the originals; and (iii) issue to the applicant the certificate of registration of true trade name with
the other original attached.
(c) Upon discontinuing the use of a registered trade name
other than the name established by the certificate of
incorporation, authority, association, or limited partnership, the
certificate of registration of true trade name shall be withdrawn
by filing a certificate of withdrawal with the office of the
secretary of state setting forth the name to be discontinued, the
real name, the address of the party transacting business and the
date upon which the original certificate of registration of true
trade name was filed.
(d) Any corporation authorized to transact business in this
state shall procure an amended certificate of incorporation in the
event it changes its corporate name by filing articles of amendment
with the office of the secretary of state as provided in article
one, chapter thirty-one of this code.
(e) A domestic corporation, limited partnership or association
business entity having its principal office within the state shall
file a certified copy of any certificate of true trade name with
the clerk of the county commission of the county in which the
principal office is located. A foreign corporation, limited
partnership or association business entity having its principal
office outside the state shall file a certified copy of any such certificate with the clerk of the county commission of a county in
which its principal business is transacted.
(f) The secretary of state shall keep an alphabetical index by
trade name of all persons filing of all certificates provided for
in issued under this section.
(g) Any corporation registering a true trade name pursuant to
the provisions of this section is subject to the limitations set
forth in subsection (c), section eleven, article one, chapter
thirty-one of this code regarding use of the words "engineer",
"engineers", "engineering", or any combination thereof.
(h) Any limited liability company registering a trade name
pursuant to the provisions of this section is subject to the
limitations set forth in section one hundred five, article one,
chapter thirty-one-b of this code.
§47-8-5. Penalty for violations.
Any individual, sole proprietorship, general partnership,
corporation, limited partnership, limited liability partnership,
limited liability company, business trust or voluntary association
or other person owning, carrying on, conducting or transacting
business as aforesaid who willfully fails to comply with the
provisions of section two or four of this article shall be guilty
of a misdemeanor, and, upon conviction thereof, shall be fined not
less than twenty-five nor more than one hundred dollars, or imprisoned in the county jail for a term not exceeding thirty days,
or both fined and imprisoned.
ARTICLE 9. UNIFORM LIMITED PARTNERSHIP ACT.
§47-9-2. Name of limited partnership.
The name of each limited partnership as set forth in its
certificate of limited partnership:
(1) Shall contain without abbreviation the words "limited
partnership," or the abbreviation "Ltd. Partnership," "LP" or
"L.P.";
(2) May not contain the name of a limited partner unless (i)
it is also the name of a general partner or the corporate name of
a corporate general partner, or (ii) the business of the limited
partnership had been carried on under the name before the admission
of that limited partner;
(3) May not be the same as, or deceptively similar to and must
be distinguishable from, the name of any corporation, or limited
partnership, limited liability partnership, or limited liability
company organized under the laws of this state or licensed or
registered as a foreign corporation, or limited partnership,
limited liability partnership, or limited liability company in this
state; and
(4) May not include the words "engineer,""engineers,"
"engineering" or any combination of those words unless the purpose
of the corporation is to practice professional engineering as defined in article thirteen, chapter thirty of this code, as
amended, and one or more of the incorporators is a registered
professional engineer as defined therein.
§47-9-3. Reservation of name.
(a) The exclusive right to the use of a name may be reserved
by:
(1) Any person intending to organize a limited partnership
under this article and to adopt that name;
(2) Any domestic limited partnership or any foreign limited
partnership registered in this state which, in either case, intends
to adopt that name;
(3) Any foreign limited partnership intending to register in
this state and adopt that name; and
(4) Any person intending to organize a foreign limited
partnership and intending to have it registered in this state and
adopt that name.
(b) The reservation shall be made by filing with the secretary
of state an application, executed by the applicant, to reserve a
specified name along with the fee prescribed by section two,
article one, chapter fifty-nine of this code. If the secretary of
state finds that the name is available for use by a domestic or
foreign limited partnership, he shall reserve that name for the
exclusive use of the applicant for a period of one hundred twenty
days. Once the applicant reserves a name he may not reserve the same name again until more than sixty days after the expiration of
the one hundred twenty day period for which the name was last
reserved. The reservation may be renewed for one additional period
of one hundred twenty days, but may not thereafter be reserved by
the same or associated persons within one calendar year of the
expiration of the last reservation period. The right to the
exclusive use of a reserved name may be transferred to any other
person by filing in the office of the secretary of state a notice
of the transfer, executed by the applicant for whom the name was
reserved and specifying the name and address of the transferee.
§47-9-51. Registration of name of foreign limited partnership.
A foreign limited partnership may register with the secretary
of state under any name, whether or not it is the name under which
it is registered in its state of organization, that includes
without abbreviation the words "limited partnership" and that could
be registered by a domestic limited partnership under the
provisions of section two of this article.
ARTICLE 9A. VOLUNTARY ASSOCIATIONS AND BUSINESS TRUSTS.
§47-9A-1. Right to acquire and dispose of property; execution of
deeds and other writings.
Any persons who are now or who have heretofore been
voluntarily associated together for the transaction or doing of
business under and pursuant to the terms and provisions of a
declaration of trust or articles or agreement of association, commonly designated as a Massachusetts trust or business trust, or
any other lawful voluntary association by whatever name known, may
purchase, acquire, hold, deal in, sell, lease, convey, exchange,
pledge, mortgage and encumber any real estate or personal property
or interest therein within this state, and may execute all deeds,
leases, contracts, or other instruments in writing with respect to
real estate or personal property or interest therein as may be
necessary or required, either in the name or names of the trustees
for the time being designated in such declaration, articles or
agreement, or their successors, or in the name or names of another
person or persons designated in such declaration, articles or
agreement, or by a descriptive, assumed or trade name, when signed
by a duly authorized officer or officers thereof, all as may be
provided for and stated in such declaration, articles or agreement:
Provided, That such association or trust shall have qualified to do
business in West Virginia, as hereinafter provided for in section
five sections two and three of this article.
§47-9A-2.Application for registration of business trust; issuance
of certificate of business trust; recording of
certificate in county.
(a) For the purposes of this article, a "business trust" is
any trust organized for the purpose of conducting business and
commonly designated as a Massachusetts trust.
(b) Any business trust organized in this state shall file
with secretary of state: (1) Two executed original copies of an
application for registration; and (2) two executed original copies
of the declaration, articles or agreement of trust creating the
business trust.
(c) Any business trust organized outside this state and
operating within this state shall file with the secretary of state:
(1) Two executed original copies of an application for
registration; (2) two executed original copies of the declaration,
articles or agreement of trust creating the business trust as
recorded in the state or country of origin of the business trust;
and (3) a statement or certificate from the proper officer of the
state or country of origin that the business trust is in good
standing.
(d)An application for registration shall set forth:
(1) The name of the business trust;
(2) If organized within the state, a statement that it is a
West Virginia business trust, or if organized outside the state,
the state in which it was organized and the formation date of the
business trust;
(3) The purpose or purposes for which the business trust is
organized;
(4) The address of its principal office;
(5) The name and address of the person to whom notice of
process may be sent;
(6) The names and addresses of all trustees having authority
to act on behalf of the business trust; and
(7) A statement reflecting the business trust's consent to and
recognition of the application to the business trust of the law of
this state with respect to corporations.
(e)An application for registration shall contain the
notarized signature of a trustee of the business trust.
(f)If the secretary of state determines that an application
for registration has been properly filed in complete form and that
the fee prescribed in section two, article one, chapter fifty-nine
of this code has been paid, he or she shall stamp on each of the
two executed original copies of the application the word "Filed"
and the month, day and year of the filing. The secretary of state
shall then issue a certificate of business trust to the applicant
showing the applicant to be duly authorized and qualified to do
business in this state as a business trust, to which he or she
shall affix one of the stamped original copies of the application.
The secretary of state shall file the other stamped original copy
of the application for its records.
(g) A business trust shall file its certificate of business
trust, together with a copy of its declaration, articles or
agreement creating the business trust, in the office of the clerk of the county commission of each county in this state in which its
business is or will be conducted or in which it will purchase,
acquire, hold, sell, lease, convey, exchange, pledge, mortgage,
encumber or otherwise dispose of real or personal property or
interests therein.
§47-9A-3.Filing of voluntary association; issuance of certificate
of voluntary association; recordation in county.
(a)For purposes of this article, a "voluntary association"
is any association organized for the purpose of conducting business
in this state, but does not include an organization formed as an
unincorporated nonprofit association under the provisions of
article eleven, chapter thirty-six of this code.
(b) Any voluntary association organized in this state shall
file with secretary of state: (1) Two executed original copies of
an application for registration; and (2) two executed original
copies of the agreement of association creating the voluntary
association (if such a agreement exists apart from the application
for registration itself).
(c)Any voluntary association organized outside this state
and operating within this state shall file with the secretary of
state: (1) Two executed original copies of an application for
registration; (2) two executed original copies of the agreement of
association creating the voluntary association; and (3) a statement or certificate from the proper officer of the state or country of
origin that the voluntary association is in good standing.
(d)An application for registration shall set forth:
(1)The name of the voluntary association;
(2)The physical address of the voluntary association;
(3)The mailing address of the voluntary association, if
different from the physical address;
(5)The name and address of the person to whom notice of
process may be sent;
(6)Whether the voluntary association is organized for profit
or as a non-profit voluntary association;
(7)The purpose or purposes for which the voluntary
association is formed;
(8)The full names and addresses of one or more of the
organizers of the voluntary association;
(9)The full names and addresses of no fewer than two
officers, owners or members of the voluntary association who have
signatory authority for the association;
(10) Any additional statements as may be required for the type
of business to be conducted; and
(11)A statement reflecting the voluntary association's
consent to and recognition of the application of the law of this
state with respect to corporations to the voluntary association.
(e)An application for registration shall contain the
notarized signature of at least one organizer or member of the
voluntary association.
(f)If the secretary of state determines that an application
for registration has been properly filed in complete form and that
the fee prescribed in section two, article one, chapter fifty-nine
of this code has been paid, he or she shall stamp on each of the
two original copies of the application for registration the word
"Filed" and the month, day and year of the filing. The secretary
of state shall then issue a certificate of voluntary association to
the applicant showing the applicant to be duly authorized and
qualified to do business in this state as a voluntary association,
to which he or she shall affix one of the stamped original copies
of the application. The secretary of state shall file the other
stamped original copy of the application for its records.
(g)A voluntary association shall file its certificate of
voluntary association, together with a copy of the agreement of
association creating the voluntary association (if any), in the
office of the clerk of the county commission of the county or
counties of this state in which its business is or will be
conducted or in which it will purchase, acquire, hold, sell, lease,
convey, exchange, pledge, mortgage, encumber or otherwise dispose
of real or personal property or interests therein.
§47-9A-4.Application of laws relating to corporations; name of
business trust or voluntary association; adoption and use
of trade name and seal; amendment of declaration,
articles or agreement; change of agent for service of
process, trustees, and members; dissolution; filing.
(a) Unless otherwise specifically provided in this article,
any business trust or voluntary association conducting business in
this state is subject to the laws of this state with respect to
corporations, including laws relating to license fees and all other
taxes, to the extent such laws are applicable.
(b)The name of any business trust or voluntary association
applying for registration shall meet the requirements for corporate
names set forth in section eleven, article one, chapter thirty-one
of this code, except that the name shall not contain the words
"incorporated," "corporation," "limited," or any abbreviation of
these terms.
(c)Any business trust or voluntary association may use a
trade name upon complying with the provisions of section four,
article eight, chapter forty-seven of this code. Any business
trust or voluntary association may adopt and use a common seal.
(d)Upon the adoption of an amendment to the declaration,
articles or agreement of trust of a business trust or the agreement
of association of a voluntary association, the business trust or
voluntary association shall file two executed original copies of the amendment, containing the notarized signature of at least one
trustee of the business trust or at least one organizer or member
of the voluntary association, with the office of the secretary of
state and with the office of the clerk of the county commission of
each county in which the declaration, articles or agreement of
trust or the agreement of association has been filed.
(e)Upon any change of trustees, organizers, members or other
persons previously recorded as having authority to act on behalf of
the business trust or voluntary association, or upon any change of
the agent of the business trust or voluntary association for
service of process, a business trust or voluntary association shall
file notice of the change with the secretary of state.
(f) Upon the determination of the majority of trustees of a
business trust or a majority of members of a voluntary association
that the business trust or voluntary association shall be
dissolved, the business trust or voluntary association shall file
with the secretary of state a statement of intent to dissolve
containing the notarized signature of at least one trustee of the
business trust or at least one organizer or member of the voluntary
association. After all debts, liabilities and obligations of the
business trust or voluntary association have been paid and
discharged, the business trust or voluntary association shall
distribute all of the remaining assets of the business trust or
voluntary association and file articles of dissolution with the secretary of state in the manner provided for corporations in
section thirty-nine, article one, chapter thirty-one of this code.
Upon verification by the appropriate state agencies that the
business trust or voluntary association has paid all taxes,
assessments and fees due to the state, the secretary of state shall
issue a certificate of dissolution to the business trust or
voluntary association.
(g) A business trust or voluntary association organized
outside the state and registered to do business within this state
may withdraw from the state in the manner provided for corporations
in section sixty, article one, chapter thirty-one of this code.
(h) No document required to be filed by this section
shall be
filed with the secretary of state unless the trustee of the
business trust or the organizer or member of the voluntary
association
is currently authorized as such and the secretary of
state has on file a document which identifies such trustee,
organizer or member, or unless the business trust or voluntary
association attaches to the document to be filed appropriate
documentation showing that the person signing the document is a
current trustee, organizer or member or is otherwise authorized to
sign the document on behalf of a current trustee, organizer or
member of the business trust or voluntary association. For
purposes of this subsection, the term "appropriate documentation"
means: (1) A notice of change filed pursuant to subsection (e) of this section; (2) a court order reflecting the identity of the
current trustees, organizers or members or the authorization of any
person to act for any trustee, organizer or member
; or (3) any
other legally authorized document assigning to the person signing
the document clear authority to execute or verify documents on
behalf of the business trust or voluntary association.
§47-9A-3 §47-9A-5.Providing for use of trade names;
acknowledgment of deeds and other writings.
Every such association or trust shall cause a copy of any
declaration, articles or agreement, duly authenticated, to be filed
and recorded in the office of the clerk of the county court of the
county in which any such association, trust or trustees shall
purchase, acquire, hold, deal in, sell, lease, convey, exchange,
pledge, mortgage and encumber or otherwise dispose of or execute
any instruments with respect to real estate or personal property or
interest therein and such Any declaration, articles or agreements
agreement of trust of a business trust and any agreement of
association of a voluntary association which providing provides for
the use of such descriptive, assumed or a trade name shall
authorize and designate or shall contain provisions for the
authorization or designation of persons by whom deeds, leases,
contracts and other written instruments in writing shall be
executed. All such deeds, leases, contracts and other instruments
in writing shall be deemed to be properly acknowledged for the purposes of recordation if acknowledged in the form provided by
statute for acknowledgments by corporations, or, if executed by
trustees or other persons, then in the form provided by statute
therefor.
§47-9A-4 §47-9A-6. Validation of deeds and other writings
heretofore executed.
All such deeds, leases, contracts and other written
instruments in writing with respect to real estate or personal
property or any interest therein within this state heretofore made
and delivered by any such association, trust or trustees business
trust or voluntary association which comply with the requirements
of this article shall be and each of them are hereby expressly
validated.
§47-9A-6 §47-9A-7. Repeal of conflicting acts; severability.
All acts or parts of acts in conflict with this article are
hereby repealed.
The provisions of this article shall be construed to be
severable and if any are held unconstitutional or otherwise
invalid, such invalidity or unconstitutionality shall not affect
the operation of the remaining provisions.
NOTE: The purpose of this bill is to make certain improvements
in the processes used by the secretary of state in certifying and
registering foreign and domestic business entities, particularly
with respect to the reservation of names and trade names.
Corporations may not now use a name which is "deceptively
similar" to the name of another business entity. The bill would
apply to corporations, limited partnerships and limited liability
partnerships the less-stringent "distinguishable from" standard
currently applicable to West Virginia limited liability companies.
The bill would also unify the standard for name reservations for
all types of business entities, by allowing one renewal period for
a 120-day reservation, prohibiting reservations by the same name or
associated persons within one calendar year after the end of these
two periods, and establishing a seven-day telephone reservation
process.
With respect to limited liability companies, the bill would
require information on the names and addresses of persons
authorized to execute documents on behalf of the LLC to be included
on the LLC's articles and annual reports and on the applications
for certificates of authority of foreign LLCs. The bill would
modernize the process for authorizing the use of trade names,
adopting a standard similar to the new standard applicable to the
names of business entities. Finally, the bill would restructure
and clarify the article on business trusts and voluntary
associations, establishing a detailed registration procedure for
both types of entities.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added. However, sections 31-1-6a and 47-9A-7 are new,
therefore, strike-throughs and underscoring have been omitted from
those sections. It should be noted that current sections 3, 4 and
6 of article 9A, chapter 47, have been amended and redesignated as
sections 5, 6 and 7, respectively; strike-throughs and underscoring
have been added in the headings of those sections to reflect this.
Also, the language of current section 47-9A-5 has been completely
removed and replaced by new section 47-9A-5.